All the Newzbin2's that's fit to profit —

Infringement is "more akin" to trespassing than theft.

A high court in the United Kingdom has ruled that a copyright owner does not have the right to claim profits from copyright infringement.

"A copyright owner does not have a proprietary claim to the fruits of an infringement of copyright. I shall not, therefore, grant proprietary injunctions," wrote judge Guy Newey of the England and Wales High Court of Justice, Chancery Division, in a ruling published on Tuesday.

For years, the Motion Picture Association of America (MPAA) has been after Newzbin2, the successor to Newzbin—a site that indexed binaries posted to Usenet. Newzbin was closed down late last year.

The original site was slammed by the UK legal system back in 2010 and was found liable for copyright infringement "because it has authorized the copying of the claimants' files; has procured and engaged with its premium members in a common design to copy the claimants' files; and has communicated the claimants' files to the public."

Newzbin’s founder David Harris was targeted as well, and his bank accounts were frozen. But the MPAA also wanted a proprietary injunction, which would allow it to seize control of his property—real estate, cars, and other assets—on the logic that film studios should get any profits from copyright infringement.

The judge did not agree with this argument, noting (in response to a coin thief analogy made by Harris' counsel) that “a copyright infringer is more akin to a trespasser rather than to the thief of the coins."

“Suppose, say, that a market trader sells infringing DVDs, among other goods, from a stall he has set up on someone else's land without consent,” Guy Newey added. “The owner of the land could not, as I see it, make any proprietary claim to the proceeds of the trading or even the profit from it. There is no evident reason why the owner of the copyright in the DVDs should be in a better position in this respect.”

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

But the MPAA also wanted a proprietary injunction, which would allow it to seize control of his property—real estate, cars, and other assets—on the logic that film studios should get any profits from copyright infringement.

Sure, get your 'share' of the profit, but are you likewise willing to bear any losses as well, should they come up? Business is business, after all.

“Suppose, say, that a market trader sells infringing DVDs, among other goods, from a stall he has set up on someone else's land without consent,” Guy Newey added. “The owner of the land could not, as I see it, make any proprietary claim to the proceeds of the trading or even the profit from it. There is no evident reason why the owner of the copyright in the DVDs should be in a better position in this respect.”

Say I owe so much land I couldn't patrol it all in a timely fashion and someone started renting some of it as a campground without my consent. I certainly would be able to claim the illicit profits on top of other damages. But that's the difference in US and UK law, I suppose.

Maybe I'm not clever enough but I don't really understand the Judge's analogy here. Is he saying that he doesn't see a difference between an actual product knock-off which is sold for profit and the location it was sold at? Or is he likening a legally run server that is engaged in illegal activity to a stall set up on someone else's property (trespassing???) in which case, because it is trespassing it's entitled to keep the money it earns? His explanation just seems incredibly mixed.

It would help to know if this case was held under civil or criminal law under the UK system. Also if it was an unlawful or an illegal offence. The wording of the article indicates this was the crux of the matter.

AFAIK, the reference to 'trespass' indicates that the judge believes it to be a civil law / an unlawful offence, so the remedies are somewhat different, and more extending to a smack on the wrist / 'consider yourself warned' / 'if we see you doing it again, you'll be in *real* trouble'.

FYI, IIRC, unlawful means 'please don't do it' - if police see you, they will order you to stop, but you won't get arrested. Illegal means 'you've done something bad' - you can get arrested & charged & hauled up in court. Refusing a police order (without good reason) to cease trespassing falls into the criminal / illegal category, where the offence becomes 'criminal trespass' or 'aggravated trespass'.

Maybe I'm not clever enough but I don't really understand the Judge's analogy here. Is he saying that he doesn't see a difference between an actual product knock-off which is sold for profit and the location it was sold at? Or is he likening a legally run server that is engaged in illegal activity to a stall set up on someone else's property (trespassing???) in which case, because it is trespassing it's entitled to keep the money it earns? His explanation just seems incredibly mixed.

Setting up a stall on someone's property without permission is trespassing. It's an infringement of the property owner's legal right to exclude you from his property. It's illegal, but it's not the same as if you actually stole his property (for example, by fraudulently signing the title over to yourself).

Selling bootleg DVDs is copyright infringement. It's an infringement of the copyright holder's legal right to exclude you from copying and distributing the DVD. It's illegal, but it's not the same as if you actually stole his copyright (for example, by fraudulently transferring the copyright to yourself).

If you were selling bootleg DVDs from a trespassing stall, the judge is saying that both the copyright holder and the property owner would have equal claim to the profits made by the stall, which in this case is no claim.

If the person who set up the stall had taken lawn ornaments from the property and sold them at the stall, then presumably the judge would have ruled that the property owner would be entitled to the proceeds of the sales of those lawn ornaments, because they were stolen and sold, and this would be the case regardless of whether they were sold from the trespassing stall or two days later on eBay.

If the person had stolen the blank DVDs from a local store, the local store might have a claim on the profits from selling the stolen goods, but the copyright holder of the material burned onto the discs would not.

The MPAA and other content representatives have pushed to export remedies like § 504 and other enforcement laws to the rest of the world through various international treaties, all in the name of harmonization. I do think that there are some class of infringers that should be required to disgorge profits such as major counterfeiting operations, for the majority of infringers it just does not make sense. Say you make a copy of a CD you have and sell it to your friend, the overhead and hassle of enforcing the disgorgement is just not worth it. Besides the ones you really want to deter are those that make a business out of this not the casual infringers.

Maybe I'm not clever enough but I don't really understand the Judge's analogy here. Is he saying that he doesn't see a difference between an actual product knock-off which is sold for profit and the location it was sold at? Or is he likening a legally run server that is engaged in illegal activity to a stall set up on someone else's property (trespassing???) in which case, because it is trespassing it's entitled to keep the money it earns? His explanation just seems incredibly mixed.

Setting up a stall on someone's property without permission is trespassing. It's an infringement of the property owner's legal right to exclude you from his property. It's illegal, but it's not the same as if you actually stole his property (for example, by fraudulently signing the title over to yourself).

Selling bootleg DVDs is copyright infringement. It's an infringement of the copyright holder's legal right to exclude you from copying and distributing the DVD. It's illegal, but it's not the same as if you actually stole his copyright (for example, by fraudulently transferring the copyright to yourself).

If you were selling bootleg DVDs from a trespassing stall, the judge is saying that both the copyright holder and the property owner would have equal claim to the profits made by the stall, which in this case is no claim.

If the person who set up the stall had taken lawn ornaments from the property and sold them at the stall, then presumably the judge would have ruled that the property owner would be entitled to the proceeds of the sales of those lawn ornaments, because they were stolen and sold, and this would be the case regardless of whether they were sold from the trespassing stall or two days later on eBay.

If the person had stolen the blank DVDs from a local store, the local store might have a claim on the profits from selling the stolen goods, but the copyright holder of the material burned onto the discs would not.

-Kasoroth

I had some difficulty with the analogy as well, your explanation makes it much more clear where the judge was coming from, thanks! I'm not sure I entirely agree with the judge's logic, as I'd think anyone selling the material is fraudulently implying to buyers that they own the copyright during the sale. (unless the buyer knows they aren't the owner, in which case both parties are at fault to some degree). Still, the more examination into what reasonable restitution is for these types of issues, the better.

Maybe I'm not clever enough but I don't really understand the Judge's analogy here. Is he saying that he doesn't see a difference between an actual product knock-off which is sold for profit and the location it was sold at? Or is he likening a legally run server that is engaged in illegal activity to a stall set up on someone else's property (trespassing???) in which case, because it is trespassing it's entitled to keep the money it earns? His explanation just seems incredibly mixed.

What his analogy means is this. The original DVD's were not being distributed, digital copies were. The copyright owner's sole right to copy was broken, in essence trespassed upon. Because no actual goods of the copyright owner were sold, only their sole right to make copies breached, they are not entitled to recoup profits, according to this judge.

Maybe I'm not clever enough but I don't really understand the Judge's analogy here. Is he saying that he doesn't see a difference between an actual product knock-off which is sold for profit and the location it was sold at? Or is he likening a legally run server that is engaged in illegal activity to a stall set up on someone else's property (trespassing???) in which case, because it is trespassing it's entitled to keep the money it earns? His explanation just seems incredibly mixed.

Setting up a stall on someone's property without permission is trespassing. It's an infringement of the property owner's legal right to exclude you from his property. It's illegal, but it's not the same as if you actually stole his property (for example, by fraudulently signing the title over to yourself).

Selling bootleg DVDs is copyright infringement. It's an infringement of the copyright holder's legal right to exclude you from copying and distributing the DVD. It's illegal, but it's not the same as if you actually stole his copyright (for example, by fraudulently transferring the copyright to yourself).

If you were selling bootleg DVDs from a trespassing stall, the judge is saying that both the copyright holder and the property owner would have equal claim to the profits made by the stall, which in this case is no claim.

If the person who set up the stall had taken lawn ornaments from the property and sold them at the stall, then presumably the judge would have ruled that the property owner would be entitled to the proceeds of the sales of those lawn ornaments, because they were stolen and sold, and this would be the case regardless of whether they were sold from the trespassing stall or two days later on eBay.

If the person had stolen the blank DVDs from a local store, the local store might have a claim on the profits from selling the stolen goods, but the copyright holder of the material burned onto the discs would not.

-Kasoroth

While your analogy is better explained than in the article, I disagree with the idea. Copyright infringement is an infringement of the copyright holder's right to distribute her works as in the methods she wants, which may include earning profits from said works.

Trespassing, as you correctly mentioned, is an infringement of the property owner to exclude you from her property. A more appropriate analogy would be if, as an earlier poster mentioned, someone began renting the property owner's land to someone else and profiting from it. They violator would not be simply guilty of trespassing and it's very likely the property owner would be entitled to those profits.

In the example of newzbin, they were not actually selling the movies. They may have been facilitating the downloading of copyrighted materials by indexing usenet, but they were only providing information that could be used to download the content, not the actual content. And certainly not everything posted on usenet is illegal content.

I dislike the way the law seems to be creeping further and further from punishing the actual copyright infringers (those who uploaded the content) towards going after those people only peripherally involved with the actual illegal copying.

A more appropriate analogy would be if, as an earlier poster mentioned, someone began renting the property owner's land to someone else and profiting from it. They violator would not be simply guilty of trespassing and it's very likely the property owner would be entitled to those profits.

Except that your analogy doesn't work, either.

In the case of copyright infringement, even with piracy, the original copyright holder is not deprived of anything. They retain everything they had throughout the infringement. Pretty much every analogy one can make involved the actual owner being deprived of the use or utilization of some tangible property that they absolutely would have made money on, had the been able to do the same action, which was rendered impossible by the trespasser/thief.

Copyright infringement, however, does an impossible-to-determine (and possibly negative) amount of damage to the legal holder's ability to profit from the same action, which is why automatic recompense is ridiculous. Particularly when consideration is taken for all of he studies that appear to show that those who download torrents are also those who spend the most on legitimate content, leading to a possible conclusion that either they download when they run out of funds to gain legitimate access, or they download as a try-before-buy format, leading to a greater willingness to pay the cost due to not having to take a chance on not liking the product.

Now, all of that isn't to say that copyright infringement or piracy are acceptable. However, they are a reaction to a business model that is unsustainable and that isn't adapting to the market fast enough to make infringement less necessary (in the case of try-before-buy).

How do they manage to go after the founder of the company? Big corporations CEOs and other bigwigs never have to answer for crimes their company commits?So how come being incorporately (presumably) was insufficient in this case?

As much as I want to see lesser punishment in the US, I think the logic the judge uses goes a bit too far. Think of it this way. Instead of the trespasser using the owners land to sell goods, what if he simply copied the land and made more land for himself? Obviously everyone would want in on that and land is devalued. The same is true with copyrights. When people illegally distribute and copy the material they are devaluing the market for that property.

In my opinion, no "old world" analogy fits current copyright.. At the end of the day, this ruling means people that pirate or bootleg material will only be told to "move along." It is troubling to see the work of creative artists, developers, and legitimate business folks being peddled for cents on the dollar by what are pretty much reverse patent trolls.

Wow, a sane ruling on copyright. It's more like trespassing than theft. I've been saying that for years.Can I move to the UK?Can we import some UK judges to the US?

-Kasoroth

Importing judges wouldn't change anything. Judges apply the laws as they are written. If they moved to the US, then US laws, which do allow for recovery, would be in place, and these judges, in addition to being jetlagged and asked to make rulings on laws that are foreign to them, would still be bound to apply the laws as they are written.

Once again, people like to blame people for applying the laws...but that's what the legal system does. You want better laws? Talk to the people that WRITE them.

Wow, a sane ruling on copyright. It's more like trespassing than theft. I've been saying that for years.Can I move to the UK?Can we import some UK judges to the US?

-Kasoroth

Importing judges wouldn't change anything. Judges apply the laws as they are written. If they moved to the US, then US laws, which do allow for recovery, would be in place, and these judges, in addition to being jetlagged and asked to make rulings on laws that are foreign to them, would still be bound to apply the laws as they are written.

Once again, people like to blame people for applying the laws...but that's what the legal system does. You want better laws? Talk to the people that WRITE them.

Can we blindfold them during the flight, and tell them they're still in the UK?

The entire PURPOSE of copyright is exactly this - if someone infringes your copyright, any profits they gained from it were illegitimate and should be yours.

Its pretty clear this judge has no understanding whatsoever of copyright law, in the UK or anywhere else. This goes against precedent in a pretty major way.

From an (admittedly) brief reading, it would appear you're wrong. Here is a link to the UK laws on Copyright. There is no provision specifically stating that a person can have recovery, and in fact, it specifically bars the seizure of any physical property in relation to the infringement. So...yeah. Feel free to link to some case law if you'd like, but I'm not seeing any law stating that the owner is entitled to recovery.

While your analogy is better explained than in the article, I disagree with the idea. Copyright infringement is an infringement of the copyright holder's right to distribute her works as in the methods she wants, which may include earning profits from said works.

Trespassing, as you correctly mentioned, is an infringement of the property owner to exclude you from her property. A more appropriate analogy would be if, as an earlier poster mentioned, someone began renting the property owner's land to someone else and profiting from it. They violator would not be simply guilty of trespassing and it's very likely the property owner would be entitled to those profits.

Let's take a slightly different trespassing analogy.

Let's assume I own a large chunk of wilderness, and I make money by giving tours of my wilderness land. I put up "No Trespassing" signs, and I have nice tours that show people just the parts of the land that I want to show them, and I offer tours when and where I want to do so.

Now let's consider a few scenarios.1) Someone takes my tour, and then refuses to pay me for it. This is theft of services, because I spent my time showing them around the property for an agreed upon sum of money, and they failed to pay.

2) Someone decides to go exploring on my property without my permission. Maybe they don't want to pay. Maybe they want to see parts that aren't on the tour. Whatever the reason, they're trespassing, but they're not stealing my services, because they aren't using my services.

3) The person from scenario #2 thoroughly explores my property, and decides that he wants to be a tour guide too. He starts offering tours at a discount rate, and allows the customer to have more choice over where the tour goes (analogous to DRM-free pirate copies). It's still just trespassing.

The judge is basically saying that in scenario #2 or #3, I could punish the unauthorized guide for trespassing, but I would not be entitled to the profits of his tours. This seems reasonable to me. He was operating a business on my property without my permission. I can kick him out, and perhaps collect some damages for his trespassing, but those damages are not dependent on how much (if any) profit he earned from that business.

In the example of newzbin, they were not actually selling the movies. They may have been facilitating the downloading of copyrighted materials by indexing usenet, but they were only providing information that could be used to download the content, not the actual content. And certainly not everything posted on usenet is illegal content.

I dislike the way the law seems to be creeping further and further from punishing the actual copyright infringers (those who uploaded the content) towards going after those people only peripherally involved with the actual illegal copying.

This detail is really important here. I would have thought that most people would agree that if you make money by simply selling bootleg DVDs, then the copyright owner is entitled to those profits if they win their case. That's not what was happening here.

It seems like some of the commenters are just happy that the MPAA lost. Everyone agrees that paying $100,000 or whatever for downloading a mp3 is ridiculous. Most people would then suggest that it would be more fair for the person to simply pay the normal price for the mp3 or some small multiplier of that. This situation seems similar to a DVD bootlegger situation. He shouldn't have to pay some crazy made up fee that has no connection to the actual lost revenue of the copyright holder. He should have to pay what the copyright holder lost out on - ie, the actual sales. One download does not equal one sale, but when you're actually paying for something, it's a bit clearer that the copyright owner did, in fact, miss out on a sale. You know, since there actually was a sale.

While your analogy is better explained than in the article, I disagree with the idea. Copyright infringement is an infringement of the copyright holder's right to distribute her works as in the methods she wants, which may include earning profits from said works.

Trespassing, as you correctly mentioned, is an infringement of the property owner to exclude you from her property. A more appropriate analogy would be if, as an earlier poster mentioned, someone began renting the property owner's land to someone else and profiting from it. They violator would not be simply guilty of trespassing and it's very likely the property owner would be entitled to those profits.

Let's take a slightly different trespassing analogy.

Let's assume I own a large chunk of wilderness, and I make money by giving tours of my wilderness land. I put up "No Trespassing" signs, and I have nice tours that show people just the parts of the land that I want to show them, and I offer tours when and where I want to do so.

Now let's consider a few scenarios.1) Someone takes my tour, and then refuses to pay me for it. This is theft of services, because I spent my time showing them around the property for an agreed upon sum of money, and they failed to pay.

2) Someone decides to go exploring on my property without my permission. Maybe they don't want to pay. Maybe they want to see parts that aren't on the tour. Whatever the reason, they're trespassing, but they're not stealing my services, because they aren't using my services.

3) The person from scenario #2 thoroughly explores my property, and decides that he wants to be a tour guide too. He starts offering tours at a discount rate, and allows the customer to have more choice over where the tour goes (analogous to DRM-free pirate copies). It's still just trespassing.

The judge is basically saying that in scenario #2 or #3, I could punish the unauthorized guide for trespassing, but I would not be entitled to the profits of his tours. This seems reasonable to me. He was operating a business on my property without my permission. I can kick him out, and perhaps collect some damages for his trespassing, but those damages are not dependent on how much (if any) profit he earned from that business.

-Kasoroth

This analogy is getting completely bonkers.

Anyway, what if the illegal tour guide is charging only like 10% of the normal amount of the tour? This isn't just causing the minor inconvenience of a trespasser, it is actually taking potential money away from the guy who owns this amazing place that everyone wants to tour. Maybe he shouldn't get 100% of the illegal tour guide's earnings, but it would be hard to claim that there was not an economic impact on the landowner. In a civil case that usually would mean the landowner will get some kind of compensation. Maybe let the illegal tour guide keep, like, minimum wage for the hours spent illegal tourguiding.

This situation seems similar to a DVD bootlegger situation. He shouldn't have to pay some crazy made up fee that has no connection to the actual lost revenue of the copyright holder. He should have to pay what the copyright holder lost out on - ie, the actual sales. One download does not equal one sale, but when you're actually paying for something, it's a bit clearer that the copyright owner did, in fact, miss out on a sale. You know, since there actually was a sale.

You're talking about damages here. If the injured party wishes to claim damages, then there's a process for that which is different to what the MPAA was trying here. I suspect the MPAA tried this argument in the UK because they couldn't demonstrate that damages had occurred. Newzbin2 was, after all, not actually selling anything at all.

As much as I want to see lesser punishment in the US, I think the logic the judge uses goes a bit too far. Think of it this way. Instead of the trespasser using the owners land to sell goods, what if he simply copied the land and made more land for himself? Obviously everyone would want in on that and land is devalued. The same is true with copyrights. When people illegally distribute and copy the material they are devaluing the market for that property.

The Analogy of copying land is also off the mark. You are forgetting the value in the location of the land. If you copy land and put it in the middle of no where no one would buy it. Trying to sell copies of the same land is the same as selling dirt. There is no value loss in the original property from selling that dirt.

Land is also a finite amount. Copying and making copies could amount to an infinite amount.

TMilligan wrote:

In my opinion, no "old world" analogy fits current copyright.. At the end of the day, this ruling means people that pirate or bootleg material will only be told to "move along." It is troubling to see the work of creative artists, developers, and legitimate business folks being peddled for cents on the dollar by what are pretty much reverse patent trolls.

As a creative artist, I do not find it troubling. The more my work is distributed to more I get recognized. There is value in that. Trying before buying is something my customers value. So as long as my work is watermarked properly and the no one steals my work in the sense that they claim first conception of said work/idea I am fine and I will get paid.

Kasaroth, the thing is whether or not a person should be allowed to profit from crime. These laws cover both digital and analog copyright infringement. If a person is caught selling thousands of copies of bootleg DVDs, should they only receive the statutory damages, and be allowed to keep the rest of the money from their illicit goods? The solution to that would be to have large damages in order to deter crime (small penalties means that a person can profit, if they sell enough bootlegs.

The question then becomes...who has the right to that money? Is it the government? Or is it the people who created the content in the first place? To me, it seems as though the people who created the content have the right to the money (less any government expenses to catch the people). The problem, of course, is that the damages in the US are often ridiculously large. That, in my mind, is what needs to be fixed (as well as a very, very large barrier between infringement for personal use and infringement for profit).

So I actually do think that recovery should be a valid legal option. We don't want criminal profiting from crime. So the other options are the government and the copyright owner. Pick your poison on that one. Mind you, this should only be if it's being done for profit. Of course, on the other hand, if a person is NOT doing it for profit, the damages should be minimal. But going after a company that profits from copyright infringement should be no different than the police raiding a warehouse full of illegal goods. The money has to go somewhere.

Sorry to keep posting, but what if the roles were reversed. Imagine a guy makes a great independent film. Then the MPAA copies it and makes millions showing it in theatres and selling DVDs. Would you really want the independent filmmaker to get some minor fee for the MPAA "trespassing" on his copyright? No, we'd obvioiusly want the filmmaker who got screwed over to get a pretty significant amount of the profits from the film.

As a creative artist, I do not find it troubling. The more my work is distributed to more I get recognized. There is value in that. Trying before buying is something my customers value. So as long as my work is watermarked properly and the no one steals my work in the sense that they claim first conception of said work/idea I am fine and I will get paid.

Piracy distributes my work and does not steal it.

Then why not offer it without any copyright at all? Copyright is a CHOICE. You can release your works under Creative Commons license and it's unencumbered, and thus, cannot be "pirated". At all.

This situation seems similar to a DVD bootlegger situation. He shouldn't have to pay some crazy made up fee that has no connection to the actual lost revenue of the copyright holder. He should have to pay what the copyright holder lost out on - ie, the actual sales. One download does not equal one sale, but when you're actually paying for something, it's a bit clearer that the copyright owner did, in fact, miss out on a sale. You know, since there actually was a sale.

You're talking about damages here. If the injured party wishes to claim damages, then there's a process for that which is different to what the MPAA was trying here. I suspect the MPAA tried this argument in the UK because they couldn't demonstrate that damages had occurred. Newzbin2 was, after all, not actually selling anything at all.

Yeah, I don't really have a problem with the judges decision in this case. I should have made it clearer that the second paragraph was trying to say that this decision shouldn't be applied to a situation like a DVD bootlegger.

Maybe he shouldn't get 100% of the illegal tour guide's earnings, but it would be hard to claim that there was not an economic impact on the landowner. In a civil case that usually would mean the landowner will get some kind of compensation. Maybe let the illegal tour guide keep, like, minimum wage for the hours spent illegal tourguiding.

It's not only not hard to claim, but there is potential to claim the exact opposite, as well. That's the problem with these cases: even when money does change hands, it's impossible to know whether any of that money would ever have ended up going to the legitimate rights-holder or if it would merely have gone to some other form of entertainment that was seen to be a better value.

When taken as a view of the entire entertainment ecosystem as opposed to trying to say each situation exists in a vacuum, one could just as reasonably argue that the pirates are actually taking money out of the coffers of a third, otherwise unrelated party.

While your analogy is better explained than in the article, I disagree with the idea. Copyright infringement is an infringement of the copyright holder's right to distribute her works as in the methods she wants, which may include earning profits from said works.

Trespassing, as you correctly mentioned, is an infringement of the property owner to exclude you from her property. A more appropriate analogy would be if, as an earlier poster mentioned, someone began renting the property owner's land to someone else and profiting from it. They violator would not be simply guilty of trespassing and it's very likely the property owner would be entitled to those profits.

Let's take a slightly different trespassing analogy.

Let's assume I own a large chunk of wilderness, and I make money by giving tours of my wilderness land. I put up "No Trespassing" signs, and I have nice tours that show people just the parts of the land that I want to show them, and I offer tours when and where I want to do so.

Now let's consider a few scenarios.1) Someone takes my tour, and then refuses to pay me for it. This is theft of services, because I spent my time showing them around the property for an agreed upon sum of money, and they failed to pay.

2) Someone decides to go exploring on my property without my permission. Maybe they don't want to pay. Maybe they want to see parts that aren't on the tour. Whatever the reason, they're trespassing, but they're not stealing my services, because they aren't using my services.

3) The person from scenario #2 thoroughly explores my property, and decides that he wants to be a tour guide too. He starts offering tours at a discount rate, and allows the customer to have more choice over where the tour goes (analogous to DRM-free pirate copies). It's still just trespassing.

The judge is basically saying that in scenario #2 or #3, I could punish the unauthorized guide for trespassing, but I would not be entitled to the profits of his tours. This seems reasonable to me. He was operating a business on my property without my permission. I can kick him out, and perhaps collect some damages for his trespassing, but those damages are not dependent on how much (if any) profit he earned from that business.

-Kasoroth

This analogy is getting completely bonkers.

Anyway, what if the illegal tour guide is charging only like 10% of the normal amount of the tour? This isn't just causing the minor inconvenience of a trespasser, it is actually taking potential money away from the guy who owns this amazing place that everyone wants to tour. Maybe he shouldn't get 100% of the illegal tour guide's earnings, but it would be hard to claim that there was not an economic impact on the landowner. In a civil case that usually would mean the landowner will get some kind of compensation. Maybe let the illegal tour guide keep, like, minimum wage for the hours spent illegal tourguiding.

Actually, it's the best analogy in the thread so far, and is spot on. You may not like it, but legally, in the UK at least, the guide has not stolen anything from the owner of the property. What should happen is damages for trespassing, and possibly damages for unfair competition or interfering in a business venture. There is no theft going on. The big problem in the US is we keep conflating violation of rights with theft, and they are not the same. Of the people who took the tour from the 'fake guide', what number would not have taken the tour at 10times the price (won't buy a video game $60)? How many would not have taken the original tour because they didn't want to see it (won't buy the game because they can't play it on their OS of choice, but can this illegal port?)? How many paid for the original tour, but bought this one so they could see things the land owner didn't want (Bought the game, then got the cracked version to avoid the hassle of always on DRM, etc?)?

Think of it this way. Instead of the trespasser using the owners land to sell goods, what if he simply copied the land and made more land for himself? Obviously everyone would want in on that and land is devalued.

That would be pretty awesome if we could just copy land to get an infinite amount. If we ever do somehow manage that impressive feat, I certainly hope people don't try to pass copyright-like laws to block it (though I imagine I'd probably be disappointed, and we'd end up with a quagmire of restrictive laws).

Concepts of property ownership exist as a systematic way to deal with allocating scarce resources. When a resource becomes non-scarce, it's no longer necessary to apply property concepts to it. Creating artificial scarcity where there is no natural scarcity is a destruction of overall value. Since it takes an infinite resource and makes it finite, it is technically an infinite destruction of value. This is a bad thing.

What we need to do is recognize genuinely scarce resources (such as the time and labor necessary to create an original work), and ensure that the market has appropriate methods for compensating that value without artificially imposing scarcity where it is not necessary.

Copyright is a system that imposes an unnecessary artificial scarcity on copies of a work as a proxy for actually directly compensating the creators for the effort needed to create it. Kickstarter, while imperfect, is a step in the right direction of directly paying for the act of creation, rather than the production of copies.

That would be pretty awesome if we could just copy land to get an infinite amount. If we ever do somehow manage that impressive feat, I certainly hope people don't try to pass copyright-like laws to block it (though I imagine I'd probably be disappointed, and we'd end up with a quagmire of restrictive laws).

Concepts of property ownership exist as a systematic way to deal with allocating scarce resources. When a resource becomes non-scarce, it's no longer necessary to apply property concepts to it. Creating artificial scarcity where there is no natural scarcity is a destruction of overall value. Since it takes an infinite resource and makes it finite, it is technically an infinite destruction of value. This is a bad thing.

What we need to do is recognize genuinely scarce resources (such as the time and labor necessary to create an original work), and ensure that the market has appropriate methods for compensating that value without artificially imposing scarcity where it is not necessary.

Copyright is a system that imposes an unnecessary artificial scarcity on copies of a work as a proxy for actually directly compensating the creators for the effort needed to create it. Kickstarter, while imperfect, is a step in the right direction of directly paying for the act of creation, rather than the production of copies.

-Kasoroth

I think we're mostly on the same page...but we have to admit that Kickstarter is an efficient system unlikely to replace copyright. Copyright is the most direct form of compensation, in theory it's time-limited and benefits the public. In reality, it's mired in an ever-extending duration that drastically increases the profit without creating more worth, and harms the public by keeping content out of the people's hands, and thus depriving them of ideas and knowledge.

Copyright, in my mind, is still a hell of a lot more efficient than expecting people to go hunt for goods they might like at some point in the future. kickstarter is a great ADDITION to the system, but it's not even close to a replacement.

Copyright needs to be neutered. Pretty hardcore, actually, and I'd even go so far as to say that a "tock", in reaction to the incremental "tick" of increased copyright, is in order. Which means that I'd actually support taking copyright and making it a bit weaker than I actually think it should be, in order to find a better middle ground. But copyright for the time being, is the best way of providing a market-oriented value to creative work.

Because it's not just time and effort we reward, it's also skill. And whatever solution we come up with, that needs to be a part of it.

As much as I want to see lesser punishment in the US, I think the logic the judge uses goes a bit too far. Think of it this way. Instead of the trespasser using the owners land to sell goods, what if he simply copied the land and made more land for himself? Obviously everyone would want in on that and land is devalued. The same is true with copyrights. When people illegally distribute and copy the material they are devaluing the market for that property.

The Analogy of copying land is also off the mark. You are forgetting the value in the location of the land. If you copy land and put it in the middle of no where no one would buy it. Trying to sell copies of the same land is the same as selling dirt. There is no value loss in the original property from selling that dirt.

Land is also a finite amount. Copying and making copies could amount to an infinite amount.

TMilligan wrote:

In my opinion, no "old world" analogy fits current copyright.. At the end of the day, this ruling means people that pirate or bootleg material will only be told to "move along." It is troubling to see the work of creative artists, developers, and legitimate business folks being peddled for cents on the dollar by what are pretty much reverse patent trolls.

As a creative artist, I do not find it troubling. The more my work is distributed to more I get recognized. There is value in that. Trying before buying is something my customers value. So as long as my work is watermarked properly and the no one steals my work in the sense that they claim first conception of said work/idea I am fine and I will get paid.

Piracy distributes my work and does not steal it.

You may be able to copy an infinite amount, but there is not an infinite market for goods. Getting your stuff out there can be easily done by you choosing to give your works away. You can also offer your customers demonstrations or trials. All of those mechanics that gets your stuff out there are available in a piracy free world. When it becomes time to charge for your hard work is when piracy can hurt creators. The reason I used the land analogy is because of how absurd it is, it highlights how current copyright is its own beast and shouldn't be compared to other long established legal mechanisms.

Anyway, what if the illegal tour guide is charging only like 10% of the normal amount of the tour? This isn't just causing the minor inconvenience of a trespasser, it is actually taking potential money away from the guy who owns this amazing place that everyone wants to tour. Maybe he shouldn't get 100% of the illegal tour guide's earnings, but it would be hard to claim that there was not an economic impact on the landowner. In a civil case that usually would mean the landowner will get some kind of compensation. Maybe let the illegal tour guide keep, like, minimum wage for the hours spent illegal tourguiding.

Actually, it's the best analogy in the thread so far, and is spot on. You may not like it, but legally, in the UK at least, the guide has not stolen anything from the owner of the property. What should happen is damages for trespassing, and possibly damages for unfair competition or interfering in a business venture. There is no theft going on. The big problem in the US is we keep conflating violation of rights with theft, and they are not the same. Of the people who took the tour from the 'fake guide', what number would not have taken the tour at 10times the price (won't buy a video game $60)? How many would not have taken the original tour because they didn't want to see it (won't buy the game because they can't play it on their OS of choice, but can this illegal port?)? How many paid for the original tour, but bought this one so they could see things the land owner didn't want (Bought the game, then got the cracked version to avoid the hassle of always on DRM, etc?)?

EDIT : Clarification of a bad phrasing

I just meant that the discussion is becoming a bit weird. Someone right above is adding the concept of copying that land to the discussion. I thought about adding, "WTF am I talking about??" at the end of my post.

I see what you are saying. Yeah, the landowner may have not had those customers at the price he was charging, so he didn't necesarily miss out. Still, actual money was exchanged. It's not really comparable to a situation where no money was exchanged.

Sorry, it just seems crazy to me that someone could make an unlimited amount of money by copying someones work or trespassing on their land and get to keep it all. I don't think that meets most people's idea of justice and fairness.

As for UK laws, I guess we'll see. Have there been actual trespassing cases like in the crazy analogy? What we have here is one judge coming up with an interesting interpretation of the law. The appeal might come to another. I don't think we really know how the law will pan out here.